Director General, Kerala Fire & Rescue Services Housing Board v. Harilal S.S. and A.T. Joshi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944 OP(KAT) NO. 432 OF 2017** **AGAINST THE ORDER/JUDGMENTOA 2840/2016 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** 1 THE DIRECTOR GENERAL, KERALA FIRE & RESCUE SERVICES HOUSING BOARD JUNCTION,THIRUVANANTHAPURAM 695 001 2 THE DIVISIONAL OFFICER OFFICE OF THE DIVISIONAL OFFICER,KERALA FIRE & RESCUE SERVICES,THIRUVANANTHAPURAM - 695 001 BY GOVERNMENT PLEADER SRI. BIJOY CHANDRAN ## **RESPONDENT/S:** 1 HARILAL S.S LEADING FIREMAN NO 4166,FIRE AND RESCUE STATION,VITHURA, NOW ON WORKING ARRANGEMENT AT VENJARAMOODU,THIRUVANANTHAPURAM RESIDING AT KUNNUMPURATHU HOUSE,AVANANVANCHERY P.O, ATTINGAL,THIRUVANANTHAPURAM 695 101 2 SRI.A.T.JOSHI LEADING FIREMAN NO.4177, FIRE AND RESCUE STATION, VYPIN, ERNAKULAM, KOCHI-682 508. BY ADVS. SRI.S.ANEESH SMT.AMRUTHA SANJEEV SRI.P.NANDAKUMAR THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 02.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :2: OP (KAT) No. 432 of 2017 ## **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ ............................................................** OP (KAT) No. 432 of 2017 .................................................................. Dated this the 2[nd] day of August, 2022 ## **JUDGMENT** ## A.K. Jayasankaran Nambiar, J. The State represented by the Director General and Divisional Officer of the Kerala Fire and Rescue Services, is the petitioner in this OP (KAT) that impugns the order dated 7-4-2017 of the Kerala Administrative Tribunal in O.A. No. 2840 of 2016. The brief facts necessary for disposal of the OP (KAT) are as follows:- 2. The applicant before the Tribunal had entered service as Fireman in the Fire & Rescue Services Department with effect from 11-11-1997. He completed his mandatory probation of two years on 11-11-1999. Thereafter, he passed the qualifying examination for further promotion as Leading Fireman in June, 2006 and on 13-12-2007, he was relieved from the department for taking up an appointment as Junior Assistant in the Treasury Department. He, thereafter, continued as Junior Assistant in the Treasury Department for a period of almost five years and subsequently, pursuant to a request put in by him for repatriation to the Fire and Rescue Department, he was granted a repatriation to that Department on 3-10-2012. It is not in :3: OP (KAT) No. 432 of 2017 dispute that he rejoined service in the Fire and Rescue Department as Fireman with effect from 18-10-2012. The next promotion that the applicant could have aspired for in the fire and rescue department was to the post of Leading Fireman, and he was promoted as such by Annexure-A1 order dated, 16-11-2013 with effect from 5-11-2008, the date on which his immediate junior in service in the Fire and Rescue Department was promoted as Leading Fireman. His seniority in the cadre of Leading Fireman was also computed accordingly, by taking the effective of date of his promotion as Leading Fireman as 5-11-2008. The applicant joined duty as Leading Fireman with effect from 3-12-2013. 3. The immediate provocation for the filing of the Original Application before the Tribunal arose in connection with the promotion of the applicant as Assistant Station Officer in the Fire and Rescue Department. Annexure-A4 Special Rules, which is relevant in this context, mandates that the qualification required for promotion as Assistant Station Officer is the successful completion of the qualifying course for Assistant Station Officer at the Fire and Service Training School for a period of four months, and a pass in the examination in the subject prescribed for the course. A note to the said Rule clarifies that the candidates for the course shall be selected according to their seniority in the feeder categories and Leading Firemen who have completed three years as Leading Fireman and driver mechanics who have completed 8 years of service in the Department are eligible for selection to the course. The select list of successful candidates in the course was to be prepared on the basis of the date of first appointment of the candidate in the service. :4: OP (KAT) No. 432 of 2017 4. In the case of the applicant, although he was permitted to attend the qualifying course based on his seniority in the post of Leading Fireman reckoned with effect from 5-11-2008, and he successfully completed the course, the result of the examinations was withheld by the petitioners herein on the ground that the applicant had not completed three years service as a Leading Fireman which was a pre-requisite for attending the course. A provisional select list excluding the name of the applicant was also published by the petitioners herein on 5-12-2016 and in the OA before the Tribunal, the applicant impugned the said provisional select list as also the action of the petitioners herein in withholding the result of the applicant. 5. The Tribunal, by Ext. P4 order, allowed the O.A. by relying on Rule 8 of KS & SSR to hold that the applicant on repatriation from the Treasury Department was entitled to all the privileges in respect of appointment, seniority, probation etc. which he would have enjoyed but for his absence in the Fire and Rescue Department to which he was subsequently repatriated. The Tribunal, therefore, found that he had satisfied the eligibility requirement for participating in the qualifying course and, therefore, quashed Annexures- A5 and A7 that were impugned in the O.A. 6. Before us, the contention of Sri. Bijoy Chandran, the learned Government Pleader appearing for the petitioners is that the Tribunal erred in equating the seniority of the applicant with his eligibility for the purposes of the Special Rules. It is his specific contention that while it may be a fact that the seniority of the applicant had to be reckoned from 5-11-2008 based :5: OP (KAT) No. 432 of 2017 on the promotion given to him as Leading Fireman with effect from that date, the eligibility requirements in the Special Rules had to be separately satisfied for attending the qualifying course and passing the same as a pre-condition for promotion to the post of Assistant Station Officer. In particular, it is pointed out, that in the case of the applicant, he did not have three years actual service as Leading Fireman although he had a notional service in the post of Leading Fireman with effect from 5-11-2008. 7. Per contra, it is the submission of Sri. Nandakumar, the learned counsel for the respondent/applicant that, in as much as Rule 8 of K S & SSR clearly contemplates that the applicant should have been granted the consequential benefits in relation to probation, seniority and promotion by treating it as a case where the applicant had never left the Fire and Rescue Services Department, the condition of three years service as Leading Fireman had to be seen as complied with on the facts of the instant case for the purposes of the Special Rules. He places reliance on the decision of the Supreme Court in **Scientific Advisor to Raksha Mantri and Another v. V.M. Joseph** [ **(1998) 5 SCC 305]** to fortify his contention on merits. 8. On a consideration of the rival submission, we find that although it may be a fact that consequent to the promotion granted to the applicant as Leading Fireman with effect from 5-11-2008, his seniority in the post of Leading Fireman has to be reckoned from the said date, the applicant has to separately satisfy the eligibility requirement prescribed in the Special Rules for joining the course, the completion of which was a pre-condition for his further promotion as an Assistant Station Officer. It cannot be in :6: OP (KAT) No. 432 of 2017 dispute that when it comes to the eligibility requirements to be satisfied under the Special Rules, the said Rules would prevail over the general rules regarding promotion, seniority etc. In the instant case, the Special Rules clearly provide that as a pre-condition for joining the course, which is a step in the matter of promotion to the post of Assistant Station Officer, the applicant had to complete three years of service as Leading Fireman. We find, as a matter of fact, that the applicant had not completed three years of service as a Leading Fireman for he joined duty as Leading Fireman only with effect from 3-12-2013. The consequence of the above would be that he became eligible to attend the qualifying course for the post of Assistant Station Officer only with effect from 2-12-2016 and not prior to that. In the instant case, since the applicant was permitted to attend the course along with the 28[th] batch that commenced on 3-5-2016 and had emerged successful in the same, as is evident from the results of the applicant which have since been published along with the results of the 30[th] batch, on 16-11-2017, we allow the OP (KAT) by setting aside the impugned order of the Tribunal but making it clear that the applicant shall be treated as having passed the qualifying course on 3-12-2016, for the purposes of his promotion as Assistant Station Officer and reckoning his seniority in the said post. Before parting with this case and taking note of the submission of the learned Government Pleader that during the pendency of this OP (KAT), the Government has also take steps to re-assign the seniority of the applicant in the post of Leading Fireman with effect from 18-10-2012 as against 5-11-2008 (Ext. P6 order produced along with the OP (KAT), we are constrained to hold that such a step could not have been taken by the :7: OP (KAT) No. 432 of 2017 petitioners at this distance of time, more so, when the OP (KAT) was pending against an order of the Tribunal which had allowed the claim of the applicant. We, therefore, formally set aside the said order and declare that the applicant's seniority in the Cadre of Leading Firemen shall be reckoned from 5-11-2008 and his promotion to the post of Assistant Station Officer shall be reckoned with effect from 3-12-2016. The petitioners shall pass consequential orders based on the declaration in this judgment forthwith, and at any rate, within one month from the date of receipt of a copy of this judgment. **SD/-A.K.JAYASANKARAN NAMBIAR,** ## **JUDGE** **SD/- MOHAMMED NIAS C.P., JUDGE** ani/2-08-22 /TRUE COPY/ :8: OP (KAT) No. 432 of 2017 ## **APPENDIX OF OP(KAT) 432/2017** ## PETITIONER ANNEXURES |ANNEXURE A1|TRUE COPY OF THE ORDER DATED 16.11.2013 ISSUED| |---|---| ||BY THE 1ST RESPONDENT| |ANNEXURE A2|TRUE COPY OF THE ORDER DATED 13.04.2015 ISSUED| ||BY THE DIVISIONAL OFFICER, KOZHIKODE| |ANNEXURE A3|TRUE COPY OF THE ORDER DATED 13.02.2014 ISSUED| ||BY THE 1ST RESPONDENT| |ANNEXURE A3(A)|TRUE COPY OF THE RELEVANT EXTRACT OF THE FINAL| ||SENIORITY LIST OF LEADING FIREMEN AS ON| ||31.10.2013| |ANNEXURE A4|TRUE COPY OF THE SPECIAL RULES FOR KERALA FIRE| ||SUBORDINATE SERVICE DATED 17.08.1988| |ANNEXURE A5|TRUE COPY OF THE ORDER DATED 19.11.2016 ISSUED| ||BY THE 1ST RESPONDENT| |ANNEXURE A6|TRUE COPY OF THE REPRESENTATION DATED| ||23.11.2016 SUBMITTED BY THE APPLICANT BEFORE| ||THE 1ST RESPONDENT| |ANNEXURE A7|TRUE COPY OF PROVISIONAL SELECT LIST FOR| ||PROMOTION TO THE POST OF ASSISTANT STATION| ||OFFICER DATED 05.12.2016| |ANNEXURE A8|TRUE COPY OF OBJECTIONS DATED 07.12.2016| ||SUBMITTED BY THE APPLICANT AGAINST ANNEXURE A7| |EXHIBIT P1|TRUE COPY OF THE OA ALONG WITH ANNEXURES| |EXHIBIT P2|TRUE COPY OF THE REPLY STATEMENT DATED 21-02-| ||2017| |EXHIBIT P3|TRUE COPY OF THE ORDER DATED 31-03-2017| |EXHIBIT P4|TRUE COPY OF THE ORDER OF THE HONOURABLE| ||ADMINISTRATIVE TRIBUNAL DATED 07-04-2017 IN| ||O.A NO 2840/2016| |RESPONDENT EXHIBITS|| |Exhibit R1(A)|TRUE COPY OF SELECT LIST DATED 04.10.2021| ||ISSUED BY THE PETITIONER.|